Alcoa of Australia Limited T/A Alcoa World Alumina Australia v The Australian Workers' Union

[2016] FWC 3582

[2016] FWC 3582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Alcoa of Australia Limited T/A Alcoa World Alumina Australia
v
The Australian Workers’ Union
(C2015/5714)

COMMISSIONER WILLIAMS PERTH, 2 JUNE 2016

Application to deal with a dispute.

[1] This decision concerns an application made by Alcoa of Australia Ltd T/A Alcoa World Alumina Australia (Alcoa or the applicant) under section 739 of the Fair Work Act 2009 (the Act). The respondent is The Australian Workers’ Union (AWU or the respondent).

[2] The application is brought via clause 19−Dispute Settlement Procedure of the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 [AE407184] (the Agreement).

[3] Alcoa has characterised the dispute to be determined by the Commission as follows:

“Is Alcoa World Alumina Australia entitled to require that all employees, including AWU Convenors, covered by the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 and working on-site within the Company’s Western Australian Mining operations, comply with the terms of the ‘Western Australian Mining Dress Policy’?”

[4] The question arises because the AWU Convenors, who are employees of Alcoa, have continued to wear shirts that bear the AWU logo which Alcoa says is in contravention of the Western Australian Mining Dress Policy (the Policy).

Alcoa’s submissions

History of Uniforms

[5] Alcoa has always provided relevant employees with the opportunity to wear company provided clothing.

[6] That clothing has always been marked in some way with Alcoa’s name and/or logo.

[7] Whilst clothing had been offered to employees, there had been no mandated uniform.

[8] Relevant employees were, prior to the implementation of the Policy, only required to wear clothing that adhered to the Alcoa’s personal protective equipment (PPE) safety rules.

[9] Several work groups in Alcoa’s Western Australian mining operations have typically worn Alcoa clothing, for example maintenance departments wear Alcoa provided and badged overalls, staff employees have generally worn Alcoa shirts and trousers and production operators typically wore supplied overalls but were able to wear Alcoa provided shirts, shorts and trousers.

[10] Clothing provided by Alcoa remains the property of the Alcoa.

Rationale for the Policy

[11] Alcoa introduced the Policy to address inconsistencies in dress standards that existed within its mining operations and which were impeding its ability to:

(a) comply with its duty of care obligations by providing the following:

(i) protective clothing against cuts, abrasions, sunburn and potential chemical exposure;

(ii) high visibility clothing for relevant employees when in the field, both day and night; and

(iii) protect relevant employees’ clothes from work-related damage;

(b) foster a sense of ‘common identity’ and thereby encourage the development of a team culture; and

(c) improve its standards and promote a professional image to visitors.

AWU Convenors

[12] Most, if not all, employees who work within Alcoa’s Western Australian operations and are covered by the Agreement are represented by the AWU.

[13] As part of the negotiations for a collective agreement in 2005, agreement was reached between the applicant and the respondent in relation to union structures and resources, which included recognition of AWU Convenors.

[14] The 2005 arrangements were silent on the right of AWU Convenors to wear clothing provided by or bearing the logo of the applicant.

[15] The role of the AWU Convenors, as established in the 2005 arrangements, was to implement the workplace issues arising from the new agreement and facilitate a positive relationship between the applicant and respondent.

[16] Terms were inserted into the Agreement and the Alcoa World Alumina Australia Pinjarra Refinery AWU Enterprise Agreement 2011 [AE884264](being clause 4.5(c) and 4.4(c) respectively) confirming a continuation of the 2005 arrangements.

[17] The clause specifically contemplated that the role of the AWU Convenors was to facilitate the elimination of waste associated with employee relations issues.

[18] The Agreement retains clause 4.5(c) in identical terms as follows:

“4.5 The parties and the employees covered by this agreement accept and acknowledge the structures, responsibilities and accountabilities of each other under this agreement.

(a) To this end, Alcoa agrees to provide the resources to enable this agreement to be implemented and maintained.

(b) Alcoa and the AWU have a long history of working together, in an endeavour to facilitate the most harmonious industrial relations environment.

(c) Consistent with that and to facilitate elimination of waste associated with employee relations issues, for the life of the Agreement and subject to no employees taking any unprotected industrial action (see Note 2 below), Alcoa commits to:

• Continue to provide the same level of support to the AWU site representatives as it did under the 2005 Agreement;

• Continue to apply the same approach to:

o Requests for paid meetings; and

o Requests from the AWU for Alcoa to cover travelling expenses associated with interstate meetings.

• Continue with the arrangements for union convenors, as current at the time this Agreement was negotiated, including permitting such convenors with reasonable access to crew members during the course of negotiating the next agreement (i.e. to replace this Agreement).

Notes: …”

Introduction of the Policy

[19] In late 2012, Alcoa commenced discussions on a policy detailing the required clothing standard for the relevant employees whilst they were on site.

[20] During those discussions the parties:

(a) discussed the respondent’s request to incorporate or directly reference the Policy in the Agreement, due to its concerns about the type of shorts that would be provided to the relevant employees. This request was refused by the applicant;

(b) drafted a memorandum of understanding (MOU) which confirmed the types of shorts that would be provided to relevant employees under the Policy (a copy of the MOU is attached as Annexure 1 to Exhibit A1); and

(c) in response to the respondent’s query, discussed whether AWU Convenors would be required to comply with the Policy (or whether they could have a union logo on their uniform).

[21] It was ultimately decided by the applicant that the AWU Convenors would be required to comply with the Policy the same as all relevant employees.

[22] Discussions on the Policy concluded in or about November 2014, being some 8 months after the Agreement commenced.

[23] In January 2015 and March 2015, the applicant notified the relevant employees that compliance with the Policy would become mandatory from 31 March 2015.

[24] Since 1 April 2015, the AWU Convenors have refused to comply with the Policy and have disputed the requirement to comply with the Policy.

[25] Notwithstanding the application of disciplinary action against the AWU Convenors, including written warnings, the AWU Convenors have refused to comply with the Policy.

[26] The respondent’s position is that all relevant employees including AWU Convenors are required to comply with the Policy as a matter of industrial obligation (i.e. it is a requirement of the Agreement) and/or as a matter of managerial prerogative (i.e. it is a reasonable and lawful instruction).

The Agreement

[27] The terms of the Agreement which are relevant to the dispute are clauses 6.5(c) and 6.6.

[28] Clause 6.5(c) provides that it is a term and condition of employment that every employee:

“Accepts and recognises the authority of any Alcoa supervisory personnel, as appointed by the Company from time to time;”

[29] Clause 6.6 of the Agreement provides as follows:

“Company policies apply to employees covered by this Agreement. These may be amended or replaced by the Company from time to time, provided the Company consults with the union prior to making changes which directly affect employees covered by this Agreement. Newly introduced or modified Company policies will not, in relation to the employees covered by this Agreement, erode, undermine, or disadvantage entitlements under this Agreement.” (Emphasis added)

[30] Alcoa submits the correct interpretation of the relevant terms, when read together is that:

(a) the applicant is entitled to introduce new policies;

(b) such policies apply, in accordance with their particular scope, equally to the applicant’s employees; and

(c) the applicant’s employees are required to accept the applicant’s authority and thereby comply with such policies (i.e. including the Policy) provided that they do not:

(i) erode;

(ii) undermine; or

(iii) disadvantage; entitlements under the Agreement.

[31] It is submitted there is no express entitlement within the Agreement which allows any of the employees, including AWU Convenors, to not comply with the Policy, or any other policy of the applicant.

[32] Whilst clause 4.5(c) of the Agreement requires the applicant to comply with the 2005 arrangements, those arrangements do not make provision for, or provide an entitlement to, the AWU Convenors to not comply with the Policy, or any other policy of the applicant.

Managerial Prerogative – General Principles

[33] The general principles in relation to managerial prerogative were considered by Vice President Lawler in Construction, Forestry, Mining and Energy Union v HWE Mining Limited 1 (HWE Mining) commencing at [7]:

“[7] The law recognises that there is an area of managerial prerogative in which the employer as the right to make decisions on how to manage their business…

[8] …

[9] As was observed by the Full Bench in Woolworths v Brown:

“[24] …employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public….it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.”

…

[11] If an employer’s exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down in Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT case):

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable…”

[12] I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.” (References omitted)

[34] The general principles of managerial prerogative outlined in HWE Mining were recently endorsed by Deputy President Sams in Bruce Steenstra v J.J. Richards & Sons Pty Ltd 2(Steenstra) at [186]:

“[186] That an employer has a right to conduct and manage its business, as it sees fit, and without external interference, is not disputed. It is a well known and long held principle, stemming from such seminal cases as the XPT Case and Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 (‘Cram’)…

[187] …

[188] The contemporary state of the law in respect to managerial prerogative was considered by Lawler VP in CFMEU v HWE Mining. I cite a lengthy passage from His Honour’s judgement below, which I respectfully adopt…”

[35] Alcoa submits it would be a nonsense if an employer’s ability to make policy, utilising their managerial prerogative, where to subrogated when considered in the context of their ability to issue a direction to comply with that policy.

[36] It is that right which the AWU Convenors have sought to challenge.

[37] It follows from the submissions above, that there is no question regarding the lawfulness of the policy or associated direction to comply.

[38] Whether a direction is reasonable is essentially a question of fact and balance.

[39] The determination of reasonableness does not require an employer to demonstrate that the direction issued was the preferable or most appropriate course of action, or in accordance with best practice, or in the best interests of the parties. 3

[40] It is submitted the applicant was entitled to introduce the Policy and require that all of the relevant employees, (including AWU Convenors) comply with it for the following reasons:

(a) the applicant, as a matter of law, is entitled to exercise its managerial prerogative which entitles it to take such action (and to make such demands of its employees);

(b) there is nothing in the Agreement, the 2005 arrangements (or elsewhere) which relevantly restricts the applicant from exercising its managerial prerogative. Any instruction to comply with the Policy is therefore lawful;

(c) the provisions of the Policy do not seek from the applicant’s employees anything which is unjust or unreasonable. Conversely, the provisions of the Policy are entirely reasonable and just;

(d) it was open to a reasonable employer in the position of the applicant, acting reasonably, to issue a direction to its employees, including the AWU Convenors to comply with the Policy; and

(e) the question of whether the applicant might meet its obligations through a different direction to the AWU Convenors regarding compliance with the Policy, such as that supported by them is not relevant to the conclusion as to the reasonableness of the direction issued.

Conclusion

[41] It is requirement that all relevant employees, (including AWU Convenors) comply with the Policy because:

(a) it is consistent with the relevant terms of the Agreement;

(b) the Policy is a legitimate exercise of managerial prerogative;

(c) the instruction is lawful and reasonable in all the circumstances; and

(d) there has not been any previous agreement reached in relation to what clothing may (or may not) be worn by AWU Convenors.

[42] The applicant submits that the correct answer to the question to be determined

is ‘Yes’.

AWU’s submissions

[43] Fundamentally the AWU submits the Policy is not applicable to AWU Convenors in mining operations to the extent that it contravenes certain provisions of the Agreement.

[44] The issue of whether Alcoa is entitled to require the AWU Convenors to comply with policies is a matter of managerial prerogative. However, the AWU says that where the Policy is inconsistent with or contravenes provisions of the Agreement, the Policy must not apply to the extent of the inconsistency. The AWU submits that Alcoa’s direction to AWU Convenors to wear work shirts that do not display any union logo contravenes the provisions of clause 4.5 of the Agreement and therefore is not reasonable and lawful.

[45] The Commission must therefore determine whether sub-clause 4.5(c) of the Agreement provides the AWU Convenors, as AWU site representatives, an entitlement to wear work shirts identifying them as union convenors.

[46] A number of facts are not in dispute:

(a) In the negotiations for the 2005 agreement, the parties agreed that Alcoa would recognize AWU structures and make resources available to AWU Convenors.

(b) The letter dated 8 December 2005, the PowerPoint presentation dated 11 August 2005 and the Agreement are silent in relation to the clothing worn by AWU Convenors.

(c) In late 2012, Alcoa commenced discussion about a policy for clothing to be worn by its mining employees.

(d) The type of shorts to be worn by mining employees was an issue which the parties overcame prior to the implementation of the Policy.

(e) At the time of the Agreement and at the time the Policy was implemented, the AWU Convenors wore union shirts.

(f) The Policy was implemented by Alcoa on 31 March 2014.

(g) Alcoa decided that the Policy applied to the AWU Convenors in totality and that the AWU Convenors were therefore unable to continue to wear their work shirts which identified them as union convenors and displayed union logos.

(h) The AWU Convenors refused to stop wearing their usual work shirts containing union logos but were otherwise compliant with the Policy.

(i) There is no issue of the shirts worn by the AWU Convenors being a breach of PPE requirements.

Agreement Interpretation

[47] The agreement provision for interpretation is sub-clause 4.5(c) of the Agreement:

“(c) Consistent with that and to facilitate elimination of waste associated with employee relations issues, for the life of the Agreement and subject to no employees taking any unprotected industrial action (see Note 2 below), Alcoa commits to:

• Continue to provide the same level of support to the AWU site representatives as it did under the 2005 Agreement;

• Continue to apply the same approach to:

o Requests for paid meetings; and

o Requests from the AWU for Alcoa to cover travelling expenses associated with interstate meetings.

• Continue with the arrangements for union convenors, as current at the time this Agreement was negotiated, including permitting such convenors with reasonable access to crew members during the course of negotiating the next agreement (i.e. to replace this Agreement).

Notes: …”

[48] The respondent says that sub-clause 4.5(c) of the Agreement has a plain meaning; the surrounding circumstances confirm that it is not ambiguous.

[49] The respondent says that the plain meaning of sub-clause 4.5(c) is that Alcoa will continue to provide the same level of support to the AWU Convenors, who are AWU site representatives, as it did under the 2005 agreement.

[50] The Macquarie Dictionary relevantly defines “support” in the following ways:

• to undergo or endure, especially with patience or submission; tolerate.



• to maintain (a person, family, establishment, institution, etc.) by supplying with things necessary to existence; provide for.



• to uphold (a person, cause, policy, etc.) by aid or countenance; back; second (efforts, aims, etc.)

[51] During the time the 2005 agreement was operational, the AWU Convenors have worn work shirts identifying them as a convenor and displaying union logos. Although Alcoa has not and does not provide the shirts worn by the AWU Convenors, it has tolerated the AWU Convenors wearing shirts which identify them as convenors and display union logos. Alcoa’s support in relation to the work shirts has extended to all five AWU Convenors and beyond the 2005 agreement to subsequent agreements, including the current Agreement. Alcoa’s support to the AWU Convenors by way of tolerance of their work shirts ceased on 31 March 2015 upon implementation of the Policy.

[52] Alcoa’s support is an example of the surrounding circumstances to which the Commission may have regard in determining whether ambiguity exists in sub-clause 4.5(c).

[53] The evidence of the surrounding circumstances is evidence of the objective framework of fact and includes:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; and

(b) notorious facts of which the parties’ knowledge can be presumed.

[54] The surrounding circumstances also include the letter from Carl Phillips dated 8 December 2005 (the 2005 Letter), which establishes the objective background facts regarding recognition of union structures and Alcoa’s provision of certain union resources. This establishes the background facts known to the parties and the subject matter of the Agreement provision, sub-clause 4.5(c), that “Alcoa commits to continue to provide the same level of support to the AWU site representatives as it did under the 2005 Agreement”.

[55] The Commission may also have regard to notorious facts in determining whether ambiguity exists. The respondent submits that in this matter notorious facts include Alcoa’s support for AWU Convenors as outlined above and other support by way of reasonable access to crew members during the course of negotiating the next agreement, AWU notice boards and time with crews during U days (training days). All these examples of Alcoa’s support to the AWU Convenors have been in place since the 2005 agreement, up to the time the current Agreement was negotiated and beyond.

[56] The respondent submits that the surrounding circumstances, confirm the plain meaning of sub-clause 4.5(c) of the Agreement is that Alcoa must continue to provide the level of support to the AWU Convenors as it did under the 2005 agreement and continue with the arrangements for the AWU Convenors as current at the time the Agreement to wear work shirts identifying the convenor and displaying union logos.

[57] Other relevant principles of interpreting enterprise agreements state that the resolution of a disputed construction of an agreement will turn on the language of the agreement understood having regard to its context and purpose.

[58] Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.7

[59] The respondent says that a consideration of the context and purpose of sub-clause 4.5(c) of the Agreement does not modify the plain meaning of the provision.

[60] Furthermore, although there was no mention in the 2005 Letter or the PowerPoint dated 11 August 2005 or in the Agreement of the AWU Convenors’ work shirts identifying them as a convenor and displaying union logos, there was also no mention of AWU notice boards and reasonable access to crew members during agreement negotiations was referenced only in the Agreement. The respondent submits that all of these are examples of “arrangements for union convenors, as current at the time [the 2014] Agreement was negotiated”. Therefore all of the arrangements, specifically the work shirts identifying the AWU Convenors and displaying union logos, are protected by the provision outlined by sub-clause 4.5(c) of the Agreement.

[61] The Respondent also submits that the HWE Mining case confirms that the Policy must not apply to the extent of the inconsistency with sub-clause 4.5(c) of the Agreement because managerial prerogative is subject to the terms of enterprise agreements as a legal constraint. The Agreement also refers to this restriction on managerial prerogative in sub-clause 6.6.

[62] The respondent submits that the Policy must not contravene the Agreement provision at sub-clause 4.5(c) and the Policy therefore applies to the AWU Convenors only to the extent that the AWU Convenors may continue to wear shirts identifying them as convenors and displaying union logos. The respondent acknowledges that PPE requirements must be complied with, although this is not a matter in issue.

Consideration

[63] I am satisfied that the Commission has jurisdiction to determine this application which has been brought to the Commission via clause 19−Dispute Resolution Procedure of the Agreement.

[64] The factual matters in this case are generally agreed.

[65] Alcoa employs a number of persons as ‘AWU Convenors’. The Agreement applies to their employment. Indeed Appendix 10−Job Descriptions of the Agreement provides that the parties will develop a job description for the AWU Convener role.

[66] The context for the inclusion of the AWU Convener role as a classification within the Agreement can be found in Clause 4−Obligations Under the Agreement. Relevantly sub-clause 4.5 provides as follows:

“4.5 The parties and the employees covered by this agreement accept and acknowledge the structures, responsibilities and accountabilities of each other under this agreement.

…

(d) To this end, Alcoa agrees to provide the resources to enable this agreement to be implemented and maintained.

(e) Alcoa and the AWU have a long history of working together, in an endeavour to facilitate the most harmonious industrial relations environment.

(f) Consistent with that and to facilitate elimination of waste associated with employee relations issues, for the life of the Agreement and subject to no employees taking any unprotected industrial action (see Note 2 below), Alcoa commits to:

• Continue to provide the same level of support to the AWU site representatives as it did under the 2005 Agreement;

• Continue to apply the same approach to:

o Requests for paid meetings; and

o Requests from the AWU for Alcoa to cover travelling expenses associated with interstate meetings.

• Continue with the arrangements for union convenors, as current at the time this Agreement was negotiated, including permitting such convenors with reasonable access to crew members during the course of negotiating the next agreement (i.e. to replace this Agreement).

Notes: …”

[67] The Agreement also expressly provides that company policies apply to employees and that new policies will not in relation to employees erode, undermine or disadvantage entitlements under the Agreement. This is provided in clause 6.6 of the Agreement as follows:

“Company policies apply to employees covered by this Agreement. These may be amended or replaced by the Company from time to time, provided the Company consults with the union prior to making changes which directly affect employees covered by this Agreement. Newly introduced or modified Company policies will not, in relation to the employees covered by this Agreement, erode, undermine, or disadvantage entitlements under this Agreement.”

[68] Historically Alcoa has provided employees with company clothing but until recently has not mandated any particular form of clothing other than clothing that adhered to Alcoa’s PPE safety rules.

[69] In 2012 Alcoa commenced discussions on a policy that would detail a required clothing standard for all employees whilst they were on site. Discussions concluded in late 2014.

[70] In January 2015 and March 2015 Alcoa notified employees that the Policy would become mandatory from 31 March 2015.

[71] The Policy amongst other things states that it applies to all Western Australian mining employees working on site. The AWU Convenors fall within this group of employees.

[72] Prior to the implementation of the Policy the AWU Convenors wore shirts to work which identified them as convenors and displayed the AWU’s logo.

[73] The Policy requires that:

“The uniform will have only the Alcoa logo and the employee’s first name on the shirt.”

[74] The evidence is that this requirement is applied in practice and Alcoa requires that all employees who are covered by the Policy wear the same uniform whether they are the Mine Manager, a Safety Representative or an AWU Convener. 4

[75] However since April 2015 the AWU Convenors have refused to comply with the Policy and have disputed their obligation to comply with the Policy. Specifically the AWU Convenors have chosen not to wear the Alcoa supplied shirt but instead wear a shirt that is otherwise the same but in addition displays the AWU logo.

[76] Notwithstanding the application of disciplinary action against the AWU Convenors including written warnings they persist with their refusal to comply with the Policy.

[77] Alcoa’s position is that the AWU Convenors, as with all other employees to whom the Policy applies, are required to comply with the Policy by virtue of the express obligations within the Agreement and Alcoa’s direction for them to comply with the Policy is a matter of managerial prerogative and that the direction that they comply with the Policy is a lawful and reasonable instruction.

[78] The AWU’s position is that where the Policy is inconsistent with or contravenes provisions of the Agreement, the Policy must not apply to the extent of the inconsistency. The AWU submits that Alcoa’s direction to AWU Convenors to wear work shirts that do not display any union logo contravenes the provisions of clause 4.5 of the Agreement and therefore is not reasonable and lawful.

[79] Firstly it has been long established that employers generally have the right to determine a uniform or clothing policy to be adhered to by employees within the workplace.

[80] I am satisfied that Alcoa, subject to the terms of the Agreement, does have the right to require its employees to comply with the Policy and Alcoa’s direction to employees that they comply with that Policy is both lawful and reasonable.

[81] The evidence is that since 2005 Alcoa has agreed to recognise AWU structures and make resources available to AWU Convenors. This commitment has been carried over into the current Agreement.

[82] That original commitment was detailed in the 2005 Letter from the then Human Resources Manager for Alcoa to the Secretary of the AWU headed “Re: Recognition of union structures and resources” explaining that subject to the 2005 agreement being certified by the Commission the parties had agreed on the recognition of the AWU structures and resources. The 2005 Letter went on to detail what Alcoa was prepared to recognise which included the particular structures of personnel and particular union structures, training arrangements, the making available of resources including access to computers, mobile phones, data projectors, office facilities and the development of an annual training plan.

[83] There is nothing in those commitments made by Alcoa that deals with the clothing to be worn by AWU Convenors or with them being identified by their clothing or wearing union logos.

[84] There is no evidence that the clothing worn by AWU Convenors which bore the AWU logo prior to the implementation of the Policy was supplied by Alcoa.

[85] The AWU’s argument that the words in sub-clause 4.5 of the Agreement that Alcoa is committed to “Continue to provide the same level of support to the AWU site representatives as it did under the 2005 Agreement” obliges Alcoa to continue to allow AWU Convenors to wear shirts that display the AWU logo is without merit. This is not the plain meaning of those words.

[86] Alcoa had not provided “support” for AWU Convenors to wear AWU logos. Alcoa has not previously concerned itself with what the AWU Convenors wore to work. Indeed prior to implementing the Policy Alcoa had not taken an interest in what any employee wore, beyond ensuring it met safety requirements.

[87] If the above words in sub-clause 4.5 contain an ambiguity then the evidence is clear that the support Alcoa is committed to continuing to provide is that which is captured in the 2005 Letter. This does not extend to allowing AWU Convenors to wear the AWU logo.

[88] I do not accept that continuing to allow AWU Convenors to wear work shirts that display AWU logos is a level of “support” that Alcoa is obliged to continue to provide by the terms of the Agreement.

[89] Similarly I do not accept that allowing AWU Convenors to continue to wear work shirts that display AWU logos is part of “the arrangements for union convenors, as current at the time this agreement was negotiated,” which Alcoa is obliged to continue with by the terms of the Agreement.

[90] I am satisfied that requiring the AWU Convenors to comply with the full terms of the Policy is not inconsistent with sub-clause 4.5 of the Agreement.

[91] The answer to the question,

“Is Alcoa World Alumina Australia entitled to require that all employees, including AWU Convenors, covered by the Alcoa World Alumina Australia WA Operations AWU Enterprise Agreement 2014 and working on-site within the Company's Western Australian Mining operations, comply with the terms of the ‘Western Australian Mining Dress Policy’?”,

is Yes.

COMMISSIONER

Appearances:

W Milward of Heelan & Co. Industrial Relations and Management for the applicant.

E Douglas for the respondent.

Hearing details:

2016.

Perth:

February 23.

 1   [2011] FWA 8288.

 2   [2015] FWC 7918.

 3   Briggs v AWH (2013) IR 231.

 4   Transcript at PN54.

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